Kennedy v. Secretary of Health

• Decision Date: 16 May 2011
• Docket Number: No. 90-1009V,90-1009V
• Citation: Kennedy v. Secretary of Health & Human Servs., No. 90-1009V (Fed. Cl. May 16, 2011)
• Parties: MELISSA KENNEDY, as Next Friend for MICHAEL DAN KENNEDY, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
• Court: U.S. Claims Court

MELISSA KENNEDY, as Next Friend for MICHAEL DAN KENNEDY, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

No. 90-1009V

United S tates Court of Federal Claims

Filed: April 28, 2011

Reissued: May 16, 2011¹

Vaccine case; Petition for review; RCFC 60 - motion for relief from judgment; RCFC 17(c) - guardian ad litem and next friend; RCFC 60(b)(4) - void judgment; Failure to appoint petitioner's parents as guardians ad litem did not render prior judgment void; RCFC 60(b)(6) - other reasons that justify relief; No showing that parents ineffectively represented their son; RCFC 60(c)(1) -timeliness of motion; Motion for review denied.

OPINION

Andrew D. Downing, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, OK, for Melissa Kennedy, as next friend for Michael Dan Kennedy.

Michael P. Milmoe, United States Department of Justice, Washington, D.C., with whom was Assistant Attorney General Tony West, for respondent.

ALLEGRA, Judge:

Melissa Kennedy, as next friend of her brother, Michael Dan Kennedy, ² seeks review of an order issued by Special Master George Hastings, Jr. denying a motion under RCFC 60seeking relief from a judgment entered in 1992. Petitioner originally brought this action pursuant to the National Vaccine Injury Compensation Act (the Vaccine Act), 42 U.S.C. §§ 300aa-10 to 300aa-34 (2006), alleging that he suffers from mental retardation as a result of a diphtheria, pertussis and tetanus (DPT) vaccination he received. The petition was denied in 1992. Petitioner claims, however, that his parents improperly represented him in this suit after he turned eighteen in 1990. This warrants relief from that judgment under RCFC 60, he asserts. The Special Master rejected these claims. After further consideration of petitioner's claims, and for the reasons that follow, the court agrees with the Special Master and finds that there is no basis to set aside the prior judgment here.

I.

On December 4, 1972, Michael Kennedy (Michael) was administered a DPT inoculation. Shortly thereafter, he exhibited numerous health complications. Two years later, in 1974, he was diagnosed as mentally retarded.

On September 17, 1990, Danny and Martha Elizabeth Kennedy, acting pro se on behalf of their son, filed a petition against the Secretary of Health and Human Services seeking compensation under the Vaccine Act, for injuries that Michael allegedly sustained following his DPT vaccination. On October 3, 1990, Michael turned eighteen. On December 14, 1990, Chief Special Master Golkiewicz issued an order notifying petitioner that his petition lacked the evidentiary proof necessary to constitute a prima facie case under 42 U.S.C. § 300aa-11(c). On February 4, 1991, Martha Kennedy attempted to shore up the petition by filing supportive reports from a doctor and a nurse.

On April 4, 1991, the case was referred to Special Master Hastings. On May 16, 1991, Martha Kennedy filed a report from a second doctor. On July 18, 1991, respondent filed its report and a motion to dismiss in which it asserted that petitioner could neither demonstrate a Table injury nor prove causation. ³ On July 24, 1991, the Special Master held a telephonic status conference with both parents and respondent. As memorialized in a September 5, 1991, order, during that conference, the Special Master "advised the Kennedys of their right to be represented by counsel to be paid by the Vaccine Program" and "that petitioners would be unable to obtain an award under the Program without the testimony of a medical doctor to the effect that Michael's retardation was caused... by the DPT vaccine." Special Master Hastings gavepetitioner sixty days, until September 22, 1991, to produce the necessary documentation. On September 26, 1991, the Special Master granted the parents' request for a thirty day extension. On October 22, 1991, Martha Kennedy filed a report from a third doctor. On November 14, 1991, the Special Master issued an order stating that this most recent report did not support petitioner's claim; he gave petitioner "one further chance" to file a report within thirty days. On November 25, 1991, Martha Kennedy requested an additional sixty days in which to respond, which extension was granted. On February 26, 1992, Martha Kennedy filed a report from a fourth doctor. On March 5, 1992, Special Master Hastings determined that this report too was insufficient. Despite finding that "the family considers their efforts complete," Special Master Hastings, "out of caution," gave petitioner an additional forty-five days (later extended by an additional sixty days) to provide the necessary documentation.

On April 22, 1992, Martha Kennedy filed a letter with the court in which she admitted that "there may not be a doctor anywhere [who] can testify that the DPT caused this condition." She, nonetheless, asked that the case be kept open. On July 13, 1992, Special Master Hastings denied the petition, ruling that petitioner "has not offered medical records or a medical opinion indicating that the onset of any encephalopathy... was manifested in the three days subsequent to his DPT inoculation" and that "there clearly is insufficient evidence in the record to raise an issue of whether any of his injuries were in fact caused by the DPT vaccine." Danny Kennedy v. Sec'y of Health & Human Servs., No. 90-1009V, slip op. at 4 (Fed. Cl. Spec. Mstr. July 13, 1992) ("Kennedy I"). This opinion advised that "[u]nless petitioner files a timely motion for review of this decision, the clerk shall enter judgment dismissing this petition with prejudice." Id. at 6. But, the parents did not file a motion for review and the Clerk dismissed the petition with prejudice.

Seventeen years later, on August 24, 2009, petitioner filed a motion to appoint Andrew D. Downing as his attorney, which motion, as consented, was automatically granted. On that same day, petitioner filed a motion for relief from the 1992 judgment. In that motion, petitioner argued that Special Master Hastings's 1992 decision is void under RCFC 60(b)(4) because a guardian ad litem or counsel was not appointed for Michael when he turned eighteen on October 3, 1990. The motion, as well, alleged that Danny and Martha Kennedy's pro se representation of their son was unlawful and warranted relief from judgment under RCFC 60(b)(6).

On October 29, 2010, Special Master Hastings denied the motion for relief, finding that under the "plain language of the Vaccine Act," a parent may represent a son or daughter pro se, and as such, Danny and Martha Kennedy were the appropriate legal representatives to file the petition on their son's behalf. Kennedy v. Sec 'y of Health & Human Servs., 2010 WL 4810233 (Fed. Cl. Spec. Mstr. Oct. 29, 2010) ("Kennedy II"). Observing that this analysis "would [not] change when a child reaches the age of majority during the course of a Program proceeding," the Special Master concluded that Michael's parents properly represented him throughout the proceeding. Id. at *6. Special Master Hastings also held that "nothing on the record... supports the implication that the Kennedys acted incompetently in their efforts to obtain support for their Program claim on Michael's behalf." Id. at *7.

On November 29, 2010, Mr. Downing filed a motion for review of the denial of the motion for relief from judgment. On December 29, 2010, respondent filed its rejoinder to the motion for review, objecting to the relief requested. On March 10, 2011, the court requested that Michael's mother file an affidavit attesting to facts that would qualify her as a "next friend" under RCFC 17(c), capable of hiring Mr. Downing on behalf of her son. Kennedy v. Sec 'y of Health & Human Servs., 2011 WL 1087202 (Fed. Cl. Mar. 10, 2011) (""Kennedy III"). On March 14, 2011, Melissa Kennedy, Michael's sister, instead filed an affidavit expressing her desire to be appointed in place of her mother. On March 17, 2011, the court found that Melissa Kennedy met the requirements for being appointed Michael's "next friend" and appointed her as such under RCFC 17(c). Kennedy v. Sec'y of Health & Human Servs., 2011 WL 1235393 (Fed. Cl. Mar. 17, 2011) ("Kennedy IV"). On March 18, 2011, the court held oral argument on petitioner's motion for review.

II.

Under the Vaccine Act, this court may review a special master's decision upon the timely request of either party. See 42 U.S.C. §§ 300aa-12(e)(1)-(2). In that instance, the court may: "(A) uphold the findings of fact and conclusions of law..., (B) set aside any findings of fact or conclusion of law... found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law..., or (C) remand the petition to the special master for further action in accordance with the court's direction." Id. at §§ 300aa-12(e)(2)(A)-(C). Under this statute, findings of fact and discretionary rulings thus are reviewed under an "arbitrary and capricious" standard, while legal conclusions are reviewed de novo. See Munn v. Sec 'y of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992); Doyle ex rel. Doyle v. Sec 'y of Health & Human Servs., 92 Fed. Cl. 1, 5 (2010).⁴

In a case not previously reviewed by a judge of this court (as is true here), Vaccine Rule 36(a)(2) authorizes a special master to consider, in the first instance, a motion seeking relief from judgment under RCFC 60. ⁵ Rule 60(b) provides an "exception to finality," Gonzalez v. Crosby, 545 U.S. 524, 529 (2005), that "allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances," id. at 528; see also United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1376 (2010). Petitioner claims entitlement to relief from judgment under two clauses of this rule, RCFC 60(b)(4) and (b)(6). The former clause permits the court to relieve a party from a final judgment if "the judgment is void," RCFC 60(b)(4), while the latter offers relief from judgment for "any other reason that justifies...